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Volume 6, Number 1 Winter 2015 Contents ARTICLES Catalyzing Volume 6, Number 1 Winter 2015 Contents ARTICLES Catalyzing Fans Dan Markel, Michael McCann, and Howard M. Wasserman ............... 1 Linking to Liability: When Linking to Leaked Movies, Scripts, and Television Shows Is Copyright Infringement Kimberlianne Podlas ................................................ 41 A European Solution to America’s Basketball Problem: Reforming Amateur Basketball in the United States Joshua Lee and Jaimie McFarlin ...................................... 95 COMMENTARY Quarterback by Committee: A Response in Memory of Dan Markel Andrew A. Schwartz ................................................ 159 Contextualizing Fan Action Committees: A Comment on Catalyzing Fans David Fagundes.................................................... 169 Promoting Values: A Comment on Catalyzing Fans Mitchell N. Berman ................................................ 179 The Tax Consequences of Catalyzed Fans Adam Chodorow ................................................... 187 The Law and Economics of Catalyzing Fans Miriam A. Cherry ................................................. 209 Money in Sports: A Critique of Fan Appreciation Contributions Zachary Sonenshine ................................................. 217 Harvard Journal of Sports & Entertainment Law Student Journals Office, Harvard Law School 1541 Massachusetts Avenue Cambridge, MA 02138 (617) 495-3146; [email protected] www.harvardjsel.com U.S. ISSN 2153-1323 The Harvard Journal of Sports & Entertainment Law is published semiannually by Harvard Law School students. Submissions: The Harvard Journal of Sports and Entertainment Law welcomes articles from professors, practitioners, and students of the sports and entertainment industries, as well as other related disciplines. Submissions should not exceed 25,000 words, including footnotes. All manuscripts should be submitted in English with both text and footnotes typed and double-spaced. Footnotes must conform with The Bluebook: A Uniform System of Citation (18th ed.), and authors should be prepared to supply any cited sources upon request. All manuscripts submitted become the property of the JSEL and will not be returned to the author. The JSEL strongly prefers electronic submissions through the ExpressO online submission system at http://www.law.bepress.com/expresso. Submis- sions may also be sent via email to [email protected] or in hard copy to the address above. In addition to the manuscript, authors must include an abstract of not more than 250 words, as well as a cover letter and resume or CV. Authors also must ensure that their submissions include a direct e-mail address and phone number at which they can be reached throughout the review period. Permission to Copy: The articles in this issue may be reproduced and distributed, in whole or in part, by nonprofit institutions for educational purposes including distribu- tion to students, provided that the copies are distributed at or below cost and identify the author, the Harvard Journal of Sports & Entertainment Law, the volume, the number of the first page, and the year of the article’s publication. Volume 6, Number 1 Winter 2015 EDITORIAL BOARD Editor in Chief Editor in Chief Kim Miner Kyle Schneider Executive Editor Executive Editor Executive Editor Daniel Ain Willimina Bromer Jay Cohen Executive Editor Managing Editor Joo-Young Rognlie Jonathan Diaz Production Chairs Submissions Chairs Highlights Chairs Adam Rosenfeld Jeffrey Huberman Jason Fixelle Shuangjun Wang Jeremy Winter Megan Michaels Online Content Chair Notes Chair Solicitations Chair Tilak Koilvaram Michael Brandon Michelle Elsner Submissions Committee Elliot Bromagen Keith James Christopher Namba Sophia Jeewon Choi Rebecca Johnson Hillary Preston Ella Cohen Jose Lamarque Nick Purcell Wesley Dietrich Marissa Lambert Harry Rudo Martin Erreich Cody Lawrence Jeremy Salinger Laura Escalona Matthew Lee Andrew Santana Timothy Fleming Zoya Lozoya Scott Sherman Michael Gocksch Douglas Margison Loren Shokes Katherine Hardiman Michael Mattheiss Zachary Sonenshine Elisa Hevia Miranda Means Jonathan Weinberg Elizabeth Houghton Megan Michaels Alex Zuckerman Jennifer Mindrum Senior Article Editors Timothy Fleming Marissa Lambert Sam Stuckey Article Editors Jonathan Gartner Hillary Preston Harry Rudo Cody Lawrence Nick Purcell Marisa Weisbaum Editors John Bailey Elizabeth Houghton Cyrus Nasseri Elliot Bromagen Tucker Hunter Crystal Nwaneri Sophia Jeewon Choi Ryan Issa Jeremy Salinger Ella Cohen Rebecca Johnson Andrew Santana Wesley Dietrich Allison Kempf Zachary Shapiro Martin Erreich Jose Lamarque Scott Sherman Laura Escalona Matthew Lee Loren Shokes Stacie Friedman Douglas Margison Olivia Smith Richard Gadsden Michael Mattheiss Zachary Sonenshine Michael Gocksch Miranda Means Saukshmya Trichi Katherine Hardiman Jennifer Mindrum Stephanie Vara Elisa Hevia Christopher Namba Jonathan Weinberg Notes Editors Patrick Gutierrez Matthew Lee Catalyzing Fans Dan Markel,Z“L* Michael McCann,** and Howard M. Wasserman*** For which team should basketball superstar LeBron James play? Where should celebrity statistician Nate Silver ply his craft of predictive wizardry? On which network should Jon Stewart flash his mordant wit? For some reason, the answers to these disparate questions are only indirectly related to the desires of third-party fans. Indeed, it is a puzzle that fans do not already have more influence on the recruitment or retention of their sports or en- tertainment heroes (“talent”). This paper proposes that fans can adopt forms of crowdfunding to mo- bilize and empower fans to play a larger role in the decision-making associ- ated with which “teams” the talent will work. By creating Fan Action Committees (“FACs”), fans could directly compensate talent or donate to * 1972-2014. Dan Markel died in July 2014; at the time of his untimely and tragic death, he was the D’Alemberte Professor of Law at Florida State University College of Law. Dan was the driving force behind the idea of FACs and this use of crowdfunding. This article is published in his memory. ** Director of Sports Law Institute and Professor of Law, University of New Hampshire School of Law; Legal Analyst & Writer, Sports Illustrated, SI.com and NBA TV. *** Professor of Law, FIU College of Law. For comments and conversations on earlier versions of this paper, we are grateful to audiences at FSU, Pepperdine, and the 10,000 Feet Legal Theory Workshop as well as to Mitch Berman, Miriam Cherry, Adam Chodorow, Brian Galle, John Greabe, Christine Hurt, Vincent Johnson, Saul Levmore, Jake Linford, Patrick Luff, Simon May, Andrew McClurg, Murat Mungan, Tamara Piety, Alex Pearl, Tamara Piety, Gregg Polsky, Garrick Pursley, Mark Ramseyer, Christopher Robinnette, Ryan Rodenberg, Andrew Schwartz, Mark Seidenfeld, Jordan Singer, Mark Spottswood, Alan Trammel, Manuel Utset, Eugene Volokh, Hannah Wiseman, and Saul Zipkin. Alejandra Berlioz, Andrew McCain and Elizabeth Dehaan provided valuable research assistance, for which we are also grateful. Copyright © 2015 by the President and Fellows of Harvard College. 2 Harvard Journal of Sports & Entertainment Law / Vol. 6 charities favored by talent. We discuss both obstacles and objections from a variety of policy and legal perspectives ranging from competitive balance to distributive justice. Finally, we consider possible extensions of the FAC model as well as offer some ruminations on why FACs have not already developed. Importantly, FACs create the potential for more efficient valuations of talent by registering not only the number of fans but also the intensity of their preferences. This insight, which stresses the upside of price discrimina- tion, has relevance for a wide range of human endeavors where bilateral con- tracts have effects on third parties that are neither calibrated nor valued adequately. Table of Contents Introduction .............................................. 3 I. Fan Action Committees: An Overview ............... 6 A. Crowdfunding in Bilateral Relationships ............... 6 B. FACs: Crowdfunding Trilateral Relationships ........... 7 II. Objections and Responses ........................... 12 A. League Reactions ................................... 12 1. An Optimistic Scenario for FACs ............... 12 2. A Pessimistic Scenario for FACs ................ 13 a. Conventional Agreements and Sources ...... 14 b. Corruption and the Best Interests Power .... 17 c. Tortious Interference With Contract? ........... 17 B. Policy Considerations ................................ 18 1. The Rich Get Richer. .and What Do Fans Get? The Distributive Justice Objection ............. 18 2. Won’t FACs Be Futile? ....................... 20 3. Do Bigger Cities Unjustifiably Get Better Teams? ...................................... 22 4. The Shibboleth of Competitive Balance: Does Wealth Disparity Diminish Competitive Enterprises? .................................. 24 5. Speech, Money, and Corruption ................ 27 6. Salary Concerns ............................... 29 7. Fan Psychology and Epistemic Deference ........ 29 C. Policy Concerns Unique to the Charitable Contribution Model ............................................ 31 1. Distributive Justice and Charitable Contributions................................. 31 2015 / Catalyzing Fans 3 2. Sports Leagues and the Charitable FAC ......... 32 III. FACs Everywhere and Nowhere ..................... 34 A. FACs Everywhere?.................................. 34 B. FACs Nowhere?.................................... 37 1. Coordination Costs
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